77 Ind. App. 533 | Ind. Ct. App. | 1921
Lead Opinion
This action was commenced by appellee against Samuel N. Finch and Alfred Finch, as partners. Samuel Finch died before trial, and the court ordered that Ira A. Finch, administrator of his estate, be substituted and made a party defendant. Without any amendment being made to the complaint or any supplemental complaint being filed, alleging the death of Samuel N. Finch and the appointment of an administrator of his estate, Ira A. Finch, as administrator, appeared and was ruled to file an answer to the complaint. This rule was discharged by filing a demurrer to the complaint for want of facts, with a memorandum attached thereto specifying that the complaint was not sufficient because the administrator was not made a party defendant. The demurrer was overruled and exception saved.
The first paragraph of the complaint alleged that' Samuel and Alfred Finch were partners in the grain business and were doing business under the name of Finch Brothers; that on July 19, 1915, plaintiff and defendants entered into a written contract, reading as follows:
“North Liberty, Indiana, July 19, 1915.
Received of Charles McClellan, Ten Hundred
Thirty-Two bushels and 30 pounds No. 2 red wheat*537 (borrowed) and to be paid for on demand at the market price.
Paid on the above contract $500.
Charles McClellan FINCH BROTHERS.”
That under the said contract the plaintiff' sold and delivered 1032 bushels and thirty pounds of wheat and that the defendants agreed to pay plaintiff the market price for said wheat at the time of demand for such payment; that $500 was paid plaintiff at the time of the execution of said contract and to apply thereon; that the plaintiff on May 16, 1917, demanded payment from the defendants of the balance due for said wheat, the market price being $3.20 per bushel and that defendants refused to pay for said wheat according to the terms of said contract and demanding judgment.
The second paragraph was in substance the same as the first.
Each defendant filed a separate answer in two paragraphs, the first paragraph of each answer being a general denial. A demurrer was sustained to the second paragraph of each answer. There was a verdict and judgment against both appellants in the sum of $2,772.35.
Appellants filed a motion for a new trial, the specifications named therein being that: (1) The verdict is not sustained by sufficient evidence, (2) is contrary to law, (3) that the court erred in permitting the plaintiff to testify as to certain transactions and conversations with Samuel Finch and also in admitting and refusing to admit certain other evidence, and (4) in giving and refusing to give certain instructions.
In Holland v. Holland (1892), 131 Ind. 196, 30 N. E. 1075, cited by the appellants, the death of one of the defendants was suggested to the court when his administrator was substituted as a party defendant, and without filing a supplemental complaint or any amendments being made to the original complaint, he appeared and was ruled to answer. He then filed a demurrer to the complaint, which was sustained. On appeal it was held that this ruling was not error.
In the case now under consideration the administrator filed an answer and there was a trial on the merits. The question for our determination is not whether it would have been error to have sustained the demurrer, but whether after trial the ruling was reversible error.
Section 350 Burns 1914, §345 R. S. 1881, provides: “The judgment upon overruling a demurrer shall be that the party shall plead over; and the answer or reply shall not be deemed to overrule the objection taken by demurrer. But no objection taken by demurrer, and overruled, shall be sufficient to reverse the judgment, if it appears from the whole record that the merits of the cause have been fairly determined. If a party fails to plead after the demurrer is overruled, judgment shall be rendered against him as upon default.”
This court in Vulcan Iron, etc., Co. v. Electro, etc., Co. (1912), 54 Ind. App. 28, 99 N. E. 429, after quoting the above section of the statute said: “When a pleading is held sufficient by the court as against a demurrer, the party demurring may stand upon his demurrer and appeal, or he may plead to the merits. If he takes the former course, the only question presented on appeal is the sufficiency of the pleading to which the demurrer was directed, and, in case such pleading is held insuffi
In Driscoll v. Penrod (1911), 176 Ind. 19, 95 N. E. 313, one of the plaintiffs having died, his administrator was by order of the court substituted as a party plaintiff. On the day set for trial the defendant objected to proceeding with the trial until after an amended or supplemental complaint was filed making the administrator a party plaintiff. The objection was overruled and on appeal the Supreme Court in sustaining the trial court, said: “While the better practice in case of the death of a person is to file a supplemental complaint alleging the fact, and praying for the substitution of the personal representative, stating his qualifications, we fail to see wherein appellants were harmed. They did not seek to controvert the fact of the death of decedent, or the fact that a personal representative had qualified, neither did they seek to reopen the issues. * * * This statute (sec. 700 Burns 1908) was enacted to dispose of such objections as are here raised.” See also Crary v. Kurtz (1906), 132 Iowa 105, 105 N. W. 590, 109 N. W. 452, 119 Am. St. 549.
The overruling of the demurrer to the complaint, if erroneous, is not reversible error. The rule is that a cause will not be reversed on appeal for error in overruling a demurrer, when it appears from the whole
Appellants insist that the word “borrowed” renders the contract ambiguous, and that the court erred in refusing to admit certain oral evidence to show whether the transaction was a bailment or a sale.
As said by the court in Norton v. Woodruff, supra, in speaking of the contract there involved: “Here, how
In Carlisle v. Wallace (1859), 12 Ind. 252, 74 Am. Dec. 207, Wallace placed in the mill of Carlisle 400 bushels of wheat upon' the agreement that the latter was át liberty to mix it with his own, convert it into flour when he pleased, sell the flour and appropriate the proceeds to his own use, and whenever Wallace saw fit he had the right to exact from Carlisle the same quantity of the same kind of wheat, or the amount of flour 400 bushels of wheat.would make, or the price of wheat per bushel in money. It was there held that, as neither the identical wheat nor the flour made from it was to be returned, and the wheat was to be mixed with that of Carlisle and used by him when he pleased, the contract was one of sale not of bailment.
In Chase v. Washburn (1853), 1 Ohio St. 244, 59 Am. Dec. 623, it was held that: “Where a ware-houseman receives wheat, and by the consent of the owner, or in accordance with the custom of trade, mixes the wheat in a common mass with the other wheat in his ware
The court permitted the appellants to show that Finch Brothers had contracted to sell wheat; that they did not have the wheat on hands to fill their contract; that they went out to appellee’s farm to see him and entered into a written contract with him and received the wheat from him under this contract and shipped it. The only inference to be drawn is that they received this wheat and shipped it to fill the contract which they had theretofore entered into; that they appropriated it to their exclusive use.
This evidence, if admitted would not have had any tendency to prove a bailment. Its only possible effect would have been to have required appellee to make his demand for the market price some time in the summer or fall of 1915. There was no offer to prove any custom relative to the manner in which Finch Brothers conducted their business or that appellee had knowledge of any custom. The fact, if it be a fact, that appellants afterwards purchased other wheat and placed it in their elevator would not have changed the situation. As stated before there was no evidence tending to show that appellants had established any custom in relation to storing grain or that appellee had any knowledge of such custom or that the wheat was delivered in accordance with any custom. Nothing was said to appellee by Finch Brothers which would give him the right to demand the return of any wheat. The only right which he had under the contract was to demand the market price of his wheat when the market price suited him. The contract expressly states that he had this right, and at the time when the contract was executed he received $500 to apply on the purchase price of the wheat.
Appellants do not claim they had a right to demand a refund of the $500 paid on the contract and to compel appellee to accept the return of an equal amount of wheat. The word “borrowed” is inaptly used, if given its more common definition, viz.: taking or receiving something from another on pledge for its return, or without pledge,
Instruction No. 5, tendered by appellants, requested the court to charge the jury that if it believed any witness had willfully testified falsely as to any material fact, it was at liberty to disregard his whole testimony.
Appellants insist that the giving of this instruction is reversible error, (1) Because it does not correctly state the substance of the contract, the word “borrowed” being ignored, (2) that it incorrectly directed their attention to the market price of the wheat at the time of their demand; that the market price at the time of the execution of the contract was at issue, rather than the market price at the time of demand. These contentions cannot prevail. There was no error in giving this instruction.
Complaint is also made of the failure of the court to give instruction No. 1 tendered by appellants, but in view of the conclusion we have reached relative to the admission of the testimony of appellee as to a conversation which he says he had with Samuel Finch, we need not enter into a discussion of this instruction.
“In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is advérse to such estate, shall not be a competent witness as to such matters against such estate,” etc.
The purpose of this statute was to prevent inducements for fraud and perjury by permitting a party to make out his claim by his own testimony which cannot possibly be met by the testimony of the other party, and to prohibit the living from testifying against the dead. Sloan, Admr., v. Sloan, Admx. (1898), 21 Ind. App. 315, 52 N. E. 413.
As said by the court in Taylor v. Duesterberg (1887), 109 Ind. 164, 9 N. E. 907: “The true spirit of the statute seems to be, that when a party to a subject-matter or contract, in action, is dead, and his rights in the thing or contract have passed to another who represents him in the action or proceeding which involves such contract or subject-matter, to which the deceased was a party, the surviving party to that subject shall not testify to matters occurring during the lifetime of the decedent.”
In Moore v. Harlan & Hollingsworth (1867), 37 Ga. 623, Moore began an action against Harlan and Hollingsworth as partners to recover damages. Moore was offered as a witness in his own behalf, but because Hollingsworth was dead, the trial court held that Moore could not testify. There was nothing in the record showing what Moore would have testified to or whether
We hold under §521, supra, appellee was not competent to testify to the alleged conversation between appellee and Samuel Finch, and that the admission of his testimony on that subject was reversible error.
Judgment reversed with direction to sustain appellants’ motion for a new trial.
Rehearing
On Petition for Rehearing.
Appellee on petition for rehearing contends that we erred in holding that he was not a competent witness to testify concerning the conversation he had with the deceased partner wherein he made a demand for the market price of the wheat, and says that our decision is contrary to Dodds v. Rogers (1879), 68 Ind. 110, which it is claimed is a ruling precedent.
In this we think appellee is in error. In that case the action was founded on a promissory note signed “Snodgrass & Dodds” and alleged to have been executed by Snodgrass and Dodds as partners. Snodgrass having died, the action was prosecuted against his administrator and Dodds. Dodds answered, (1) Denying
Our attention is also called to the case of Hess v. Lowrey (1890), 122 Ind. 225, 23 N. E. 156, 7 L. R. A. 90, 17 Am. St. 355, but that was a case where no judgment could be rendered that would in any manner affect the estate of the deceased partner. That was an action ex delicto, and in so far as the deceased partner was concerned did not survive. It had for that reason been dismissed as to the administrator of the dead partner’s estate and was prosecuted against the surviving part
The instant case is an action on a contract, where the cause of action survives the death and if a judgment is rendered against the appellant or the surviving partner, the liability of the estate of the dead partner is fixed and established by the testimony of appellee. This is clearly prohibited by the letter and spirit of the statute. See, Bay View Brewing Co. v. Grubb (1903), 31 Wash. 43, 71 Pac. 553; Gage v. Phillips (1891), 21 Nev. 150, 26 Pac. 60, 37 Am. St. 494; Green v. Ediek (1874), 56 N. Y. 613; Clift v. Moses (1889), 112 N. Y. 426, 29 N. E. 392; Edwards v. Parker (1889), 88 Ala. 356, 6 South. 684; Alexander’s Exrs. v. Alford (1883), 89 Ky. 105, 20 S. W. 164; Standbridge v. Catanach (1877), 83 Pa. St. 368; Hanna v. Wray (1874), 77 Pa. St. 27; Stuart Bros. v. Altman (1894), 8 Tex. Civ. App. 657, 288 S. W. 461.
Rehearing denied.